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Private Sector Use of Facial Recognition Faces Legal Challenges

Innovations in the development of facial recognition software is among the most important technology trends to impact the physical security industry this past decade. Driven by advancements in machine learning, the solutions available on the market today can detect the faces of individuals with an incredible degree of accuracy.


“Normally in civil litigation you have to show both the breach of a statute and that you were harmed in some way. The reason that BIPA is so impactful, and has been used the way it has, is due to how the law was written; it says you can have either actual or statutory damages,” explains Jeffrey N. Rosenthal, a Partner at the law firm Blank Rome LLP who specializes in privacy and consumer protection class action defense. “There are hundreds of these BIPA cases being filed more and more often now because the plaintiffs’ bar has figured out that there is the potential for serious damages here and serious exposure.”


According to Rosenthal, companies that have found themselves involved in BIPA cases have typically fallen into two categories: those that offer photo-tagging services, such as Facebook and Shutterfly, and businesses that use fingerprints or other biometric identifiers for time and attendance tracking. However, Rosenthal says the class action lawsuits against Home Depot and Lowe’s mark the next iteration in the use of BIPA in the courts and potentially expose retailers and other organizations using facial recognition for security applications to a new wave of lawsuits.

“What makes these cases unique is that biometrics are being used for loss prevention surveillance; it shows another way to extend the statute. Normally it has been photo tagging,  fingerprints, etc., but now however many stores like Lowe’s and Home Depot are using these loss prevention and facial recognition software for customers in the door, we think that plaintiffs are going to continue to seek ways to expand the reach of the law.”  

"Private Sector Use of Facial Recognition Faces Legal Challenges" by Joel Griffin was published in on October 18, 2019.